Full Judgment
2. Counsel for the contesting respondents raised a preliminary objectionthat the present writ petition is not maintainable since it relates tomutation proceedings.
3. Under these circumstances, the primary question to be decided is as towhether the writ petition arising out of mutation proceedings underSection 34 of Land Revenue Act is maintainable or not.
4. It is settled law that the writ petition arising out of the proceedings underSection 34 of the Land Revenue Act, 1901 is not maintainable as theproceedings are summary in nature. Both the Court below have passedorder against the petitioner. Counsel for the petitioner contends that hiscase falls in the exception carved out by this Court in number ofjudgments in which it has been held that the writ petition can beentertained subject to the availability of the remedy to the partyaggrieved as the property in dispute was auctioned during the pendencyof the original suit. He further submits there is no absolute bar tointerfere with the mutation order in appropriate cases.
5. The question whether the writ petition in such matter is maintainable ornot has been examined in various cases. In Puran Singh vs. Board ofRevenue and others 2004(1) AWC 853 while formulating thecategories, observed as under in paragraph 5 of the report:
" After hearing the arguments, the Court has examined the matter.Needless to say that decision given in the case of Lal Bachan (supra)relied upon by the counsel for the petitioner has also laid down thatordinarily orders passed by mutation courts are not to be interfered asthey are in summary proceedings, subject to regular suit. Exceptionshave been carved out in various decisions of this Court including thedecision in the case of Lal Bachan (supra) and even the decisions ashas been given in the case of Ram Kumar (supra), on which the reliancehas been placed by the learned counsel for the respondent which canbe categorized as thus:
(i) if the order is without jurisdiction;
(ii) if the rights and title of the parties have already been decided by anycompetent court and that had been varied by mutation courts;
(iii) if the mutation had been directed not on the basis of possession orsimply on the basis of some title deed but after entering into debate ofentitlement to succeed the property touching into merits of rival claims."
6. In Jailpal vs. Board of Revenue 1957 AIR All. 205, the learnedSingle Judge of this Court while dismissing the writ petition observedthat it has however been the consistent practice of this Court not tointerfere with orders made by the Board of Revenue in cases in whichthe only question at issue is whether the name of the petitioner shouldbe entered in the record of rights. That record is primarily maintained forrevenue purposes and an entry therein has reference only topossession. Such an entry does not ordinarily confer upon the person inwhose favour it is made any title to the property in question, and hisright to establish his title thereto is expressly reserved by Section 40(3)of the Act. The only exception to this general rule is in those cases inwhich the entry itself confers a title on the petitioner by virtue of theprovisions of U.P.Zamindari Abolition and Land Reforms Act.
7. As averred above, mutation proceedings doe not decide the right or titleof the parties rather these proceedings are just fiscal in nature. Theyhave just got legal effect of entering name of vendee in place of thevendor or the name of lessee in place of lessor. These mutationproceedings are to enable the State to receive revenue from vendee.[See: Ram Bharose Lal vs. State of U.P. and others 1991 RD 72 andSmt. Queeni Banerji and another vs. Board of Revenue 1997(15) LCD1182].
8. In the case of Sri Lal Bachan v. Board of Revenue, Uttar Pradesh[2002 AWC 1-169], this Court held in paragraph 22 as under:-
"22. The cases in which writ petition can also be entertained arising outof the mutation proceedings may be cases in which an authority nothaving jurisdiction has passed an order or interfered with an orderpassed in the proceedings. The writ petition challenging an orderpassed without jurisdiction can be entertained by the Court despiteavailability of an alternative remedy. However, in that case also, theCourt will interfere only when it appears that substantial injustice hasbeen suffered by a party. In view of the above discussion, it is held thatthe writ petition arising out of the mutation proceedings under Section34 U. P. Land Revenue Act cannot be entertained by this Court subjectto only exception as laid down by the Division Bench in Jaipal's case(supra). The writ petition may also be entertained where authoritypassing the order had no jurisdiction."
9. In Sridhar Tripathi vs. Board of Revenue; 1996 RD 100 on whichreliance has been placed by the Counsel for the petitioner, is of no availto him as in that case this Court held that the writ petition ismaintainable for the reason it was not a pure and simple case ofmutating the name of the respondent no.3 on the basis of the sale deed,but the opposite party no.3 claimed to get his name mutated on thebasis of mutation order in 1968 made by the Consolidation Authorities inproceedings under Section 12 of U.P.C.H.Act. Under thesecircumstances, the learned Single Judge observed that these factsmakes a sea of difference and cannot be said to be a simple case ofmutation.
10. However, it may be added that in the cases where the order of mutationhas been obtained by fraud or misrepresentation of fact or by fabricatingthe documents, the writ petition cannot be dismissed on the ground of itbeing not maintainable. The Court cannot shut its eyes and be a party inperpetuating injustice. In the instant case, the entire proceedings under Section 34 of theL.R.Act were initiated first and second set of respondents to get theirnames entered on account of unregistered Will Deed dated 10.9.1994by filing the case no. 399/98 whereas Smt. Kudia died on 17.8.2007.
12. From the record, it appears that first set and second set of therespondents got the revision decided in terms of the compromise. Theorder in revision was passed behind the back of the petitioners as thepetitioners were not arrayed party, though they were necessary party.
13. Thus it comes out that some fraud has been played upon the Court.Afterhearing learned Counsel for the parties and perusing the impugnedorders, for reasons discussed above, the writ petition falls in theexceptions clause, which accordingly is allowed. The impugned orderdated 15.11.2010 passed by Additional commissioner(Administration)Moradabad Division, Moradabad is hereby set-aside. The respondentno.2 is directed to decide the Revision No. 160 of 2009-2010 afreshafter giving reasonable opportunity of hearing to the petitioners inaccordance with law. It will be open to the parties to file any document insupport of their case.